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NAVARRO v. UIC MEDICAL CENTER

September 13, 2001

MARIA NAVARRO, PLAINTIFF,
v.
UIC MEDICAL CENTER, DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur, S.U.S.D.J.

MEMORANDUM OPINION AND ORDER*fn1

After Maria Navarro ("Navarro") filed a self-prepared Complaint of Employment Discrimination*fn2 against her employer that she designated as "UIC Medical Center," this Court promptly appointed this member of the trial bar to represent Navarro pro bono publico:

Jody Pravecek Cogan & McNabola, P.C. 55 West Wacker Drive, 9th Floor Chicago IL 60601 312.629.2900

After service of the Complaint and summons, defense counsel Vincent Pinelli, Esq. ("Pinelli") requested and was granted an extension of time to answer or otherwise plead to the Complaint, having advanced several reasons that added time was needed.

Now defense counsel Pinelli has served notice of the proposed presentment of a motion to dismiss the Complaint, coupled with an accompanying memorandum of law. Not only has that violated a fundamental rule by having been served on Navarro alone rather than her lawyer (can it be that defense counsel failed to check the court file?), but the motion's most fundamental attack on the Complaint is without support in the law. Accordingly, the motion to dismiss under Fed. R. Civ. P. ("Rule") 12(b)(6) is denied, the Board of Trustees of the University of Illinois ("Board of Trustees") is substituted as defendant in this action, and it is ordered to file an answer to the Complaint in this Court's chambers (with a copy served on Navarro's counsel) on or before September 21, 2001,

It should be made clear at the outset that pro se plaintiff Navarro's mistaken (but understandable) error in naming the correct defendant is not fatal. It is quite true that the Medical Center is not a suable entity as defense counsel asserts, but Rule 15(c) expressly permits the making of a change to name the proper party defendant, and that same Rule provides for relation back of that change to the date of Navarro's original Complaint. This Court is simply treating the Complaint sua sponte as having been amended by substituting the already mentioned Board of Trustees for UIC Medical Center wherever the latter name appears.

To turn to the substantive challenge to Navarro's Complaint, defense counsel seeks to invoke Eleventh Amendment immunity as the basis for dismissal. Although Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) has held that the extension of the Age Discrimination in Employment Act to state governments could not override Eleventh Amendment immunity and Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001) has ruled the same way as to the Americans with Disabilities Act, those holdings do not extend to Navarro's claims, which are brought under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 — assertions of employment discrimination based on her color, sex and national origin. Indeed, both of those decisions refer expressly to the quarter-century-old decision in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which upheld the constitutionality of Title VII against an identical Eleventh Amendment attack, as still-existing precedent totally distinguishable from the different types of employment discrimination at issue in the more recent cases (see Kimel, 528 U.S. at 80 and Garrett, 121 S.Ct. at 962).*fn3

It may be that the crabbed view of the Fourteenth Amendment displayed by the five-Justice majority in Kimel and Garrett may one day overrule Fitzpatrick, thus gutting that Amendment sufficiently to undo the salutary effects of Title VII against impermissible discrimination by States and their institutions. But that date fortunately has not yet arrived.*fn4 Until then, claims such as Navarro's will remain viable. As stated earlier, the Rule 12(b)(6) motion is denied, and the Board of Trustees is ordered promptly to file its answer to Navarro's Complaint on the previously-stated timetable.

*fn2 To be more precise, Navarro used the preprinted form supplied for pro se litigants by this District Court's Clerk's Office, filling in the blanks in handwriting.

*fn3 It is worth noting that Fitzpatrick was written for the Court by then Justice (now Chief Justice) Rehnquist, who has since authored Garrett and was part of the five-Justice majority in Kimel.

*fn4 If the Board of Trustees had retained the Attorney General's Office, the State's chief counsel, to represent it, that office would surely have been expected to know that the Supreme Court has held precisely the opposite of what the current motion has urged. And the choice of private counsel in no way lessens the obligation to know the law that has been firmly entrenched for so long, and that has actually been reconfirmed in two recent decisions that have expanded the reach of the Eleventh Amendment in substantively different contexts.

MEMORANDUM OPINION AND ORDER AND RECONSIDERATION

This Court's September 13, 2001 memorandum opinion and order ("Opinion")[fn1A] rejected the then-tendered effort of counsel for the Board of Trustees of the University of Illinois ("Board of Trustees")[fn2A] to dismiss, on Eleventh Amendment immunity grounds, both the Complaint of Employment Discrimination and this action brought against it by its ex-employee Maria Navarro ("Navarro"). Nothing daunted, Board of Trustees' counsel has now served notice of the proposed presentment of a motion for reconsideration and — once again — a supporting memorandum of law, though in this instance the memorandum is far more extensive than the one submitted earlier.

What Board of Trustees' counsel has identified in that current filing is not any claimed misapprehension on the part of this Court as to the issues involved, but rather a disagreement with this Court's holding that neither Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) nor Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001) (nor any other case, for that matter) undercuts the continuing viability of Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), which upheld the constitutionality of Title VII against an identical Eleventh Amendment attack (accord, Liberles v. County of Cook, 709 F.2d 1122, 1135 (7th Cir. 1983); cf. United States v. City of Chicago, 573 F.2d 416, 423 (7th Cir. 1978)). Because such a substantive disagreement is not a proper ground for a motion to reconsider (in which respect the felicitous explanation in the Above the Belt Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D, 99, 101 (E.D. Va. 1983) has been ...


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